Analysis

Clinton's email controversy opens up fuzzy world of document secrecy

The FBI's decision to review emails that may be connected to Hillary Clinton's private server is just the latest twist in a scandal that has haunted the Democratic presidential candidate. But determining exactly what is and isn't classified isn't as straightforward as it sounds.

Former secretary of state told FBI she did not pay attention to level of classification of information

Democratic presidential candidate Hillary Clinton said none of the information sent or received via her private email server was marked with the headers 'confidential,' 'secret' or 'top secret.' (Andrew Harnik/Associated Press)

The FBI's decision to review a cache of recently discovered emails that may be connected to Hillary Clinton's private server is just the latest twist in a scandal that has haunted the U.S. Democratic presidential candidate on the campaign trail.

The decision by FBI director James Comey to inform Congress about this review, which itself has come under scrutiny, is all part of the controversy over whether Clinton was sending classified material on her unsecured private email server while she was secretary of state. 

The nature of the emails discovered most recently is not known. But sending messages on an unsecure server could be a problem because of the possibility of hacking. Indeed, as the FBI stated in July, it's a "felony to mishandle classified information either intentionally or in a grossly negligent way." 

But determining exactly what is and isn't classified isn't as straightforward as it sounds. 

Democratic presidential candidate answers questions during national security forum 2:08

Clinton and her team have argued that she never sent or received information marked classified. But they have also made the case that too much information is over-classified and that many of her emails that have since been retroactively classified didn't need to be. 

And on the second point, Peter Van Buren, a former State Department official, agrees, in part, with Clinton.

Too much stuff gets classified, there's no question about it.- Peter Van Buren, former U.S. State Department official

"Too much stuff gets classified, there's no question about it," said Van Buren, who held a "top secret" security clearance with the State Department for 24 years.

But it's the originating agency that decides the classification level, he said.

"So whether Hillary likes it or not that CIA and NSA and the Pentagon classified the stuff she handled, no one really cared what she thought," Van Buren said in an interview before the most recent controversy emerged.

As for information originating from the State Department, Clinton would have had the ultimate authority to unclassify or lower the classification of those documents, he said. 

But there's a process, said Van Buren, adding that Clinton never availed herself of that process.

"She doesn't just get out her red pen and cross out 'secret' and write in unclassified."

3 levels of information

When it comes to classified information, there are generally three basic levels that apply to sensitive U.S. government information: confidential, secret and top secret.

Confidential information, if disclosed, can reasonably be expected to cause damage to the national security of the country. According to Executive Order 13256 issued by U.S. President Barack Obama in 2009, secret information may cause "serious damage," whereas top secret information could cause "grave damage" to national security.

Revelations may compromise strategies and plans or negotiating positions.- Jeffrey Fields, School of International Relations, University of Southern California

For example, nuclear weapons design, information about strategy or troop deployments, conversations between the president and foreign leaders or the exact schedule and location of the president while travelling could all fall under one of those classifications, said Jeffrey Fields, professor at the University of Southern California's School of International Relations.

Many of the reporting cables sent from embassies and consulates back to Washington and unveiled in the Wikileaks dump were also deemed classified.

'Potentially at a disadvantage'

"Obviously, if certain classified material is mishandled and subsequently finds it way into the hands of an adversary, you are potentially at a disadvantage," said Fields, a former analyst at the State Department and the Department of Defence who also held a top secret clearance. 

"Revelations may compromise strategies and plans or negotiating positions."

Under Executive Order 13256 , the authority to classify information is given to certain individuals, including the president and vice-president, agency heads and those specifically designated by authorities outlined in the executive order, said Fields.

Clinton checks her BlackBerry from a desk inside a C-17 military plane upon her departure from Malta, bound for Tripoli, Libya, on Oct. 18, 2011. (The Associated Press)

People go to prison

People do go to prison or are at least prosecuted for intentionally revealing classified information. Chelsea Manning is serving a 35-year sentence after being convicted in 2013 of espionage and other offences for sending more than 700,000 classified documents while working in Iraq.

However, former CIA director and retired general David Petraeus, who knowingly gave top secret classified material to his mistress, was later only charged with a misdemeanour for mishandling classified material and paid a fine of $100,000 US and served no prison time.

Former CIA director and retired Gen. David Petraeus, who knowingly gave top-secret classified material to his mistress, was later only charged with a misdemeanour for mishandling classified material. (Richard Drew/Associated Press)

Back in July, when Comey announced the results of the FBI investigation into Clinton's emails, he said there was no clear evidence Clinton or her colleagues intended to violate laws regarding the handling of classified information. But he said there was evidence "that they were extremely careless in their handling of very sensitive, highly classified information."

In this 2010 email released by the U.S. State Department on Aug. 31, 2015, Clinton asks her aide about a number of issues, including the broadcast times for the TV shows Parks and Recreation and The Good Wife. (U.S. State Department)

There were seven email chains, for example, that concerned top secret information when they were sent and received, he said. Any reasonable person in Clinton's position, Comey said, should have known that an unclassified system "was no place for that conversation."

Some critics also believe Clinton's interview with the FBI suggests she wasn't entirely familiar with the classification system.

For example, when asked about her knowledge of the three main levels of classification, Clinton said she "did not pay attention to the level of classification and took all classified information seriously."

Clinton has suggested she shouldn't be blamed for sending or receiving classified information via her private email server since none of the material was explicitly marked with the headers "confidential," "secret" or "top secret."

There were, however, three email chains that included one paragraph that was marked with the initial C (for confidential), Comey said. 

Clinton, in her interview with the FBI, said she didn't know what the "C" meant at the beginning of the paragraph and "speculated it was referencing paragraphs marked in alphabetical order."

FBI director James Comey has informed Congress about a review of emails that may be connected to Clinton's primate email server. (J. Scott Applewhite/Associated Press)

However, Van Buren said that "it is literally beyond comprehension that somebody could handle classified information and not know that."

"It's literally impossible. It's like claiming you're an author but you don't know what periods and commas are."

As secretary of state, Clinton was frequently making public statements on subjects about which she knew much more than she could reveal. This fact alone made it "absolutely critical" that she knew what information is "highly classified, what is unclassified and so forth," Van Buren said.

'Still obligated to protect it'

And as Comey pointed out in a July 5 statement, "even if information is not marked 'classified' in an email, participants who know or should know that the subject matter is classified are still obligated to protect it."

Some have suggested that Clinton should have been charged for mishandling classified information and point to case of a navy sailor who took pictures on his cellphone of an engine room of a nuclear submarine.

But according to Fields, "in the case of egregiously mishandling information, generally, the most severe punishment is loss of one's security clearance."

About the Author

Mark Gollom

Reporter

Mark Gollom is a Toronto-based reporter with CBC News. He covers Canadian and U.S. politics and current affairs.

With files from The Associated Press

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